Bember v. American Medical Response of CT, Inc

Full title: Lee Roy Bember v. American Medical Response of CT, Inc

Court: Superior Court of Connecticut

Date published: Nov 15, 2016

CV146049824S (Conn. Super. Ct. Nov. 15, 2016)

Opinion

CV146049824S

11-15-2016

Lee Roy Bember v. American Medical Response of CT, Inc

Robin L. Wilson, J.

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Robin L. Wilson, J.

I

STATEMENT OF CASE AND PROCEDURAL HISTORY

The plaintiff, Lee Roy Bember commenced this medical negligence action against the defendant, American Medical Response of CT, Inc. by service of writ, summons and complaint on September 9, 2014. The case was returned to court on September 19, 2014. The plaintiff alleges that the defendant, through the acts of its employees, Frank David and Greg Thornhill, negligently caused the plaintiff's injuries. The defendant denies that it was negligent and asserts the special defense of immunity pursuant to the Good Samaritan Act, General Statutes § 52-557b(b). More specifically, the defendant maintains that because the plaintiff's cause of action is based in negligence and involved the rendering of emergency first aid by the defendant's employees, the employees, and therefore the defendant, are immune from liability pursuant to the Good Samaritan Act, General Statutes § 52-557b(b).

The plaintiff argues that the defendant failed to prove its special defense because, as a matter of law, for-profit corporations, such as the defendant, are not covered by the statute, and the defendant cannot escape liability because its agents are immune under the statute. The plaintiff further contends that the statute is inapplicable because the medical treatment rendered by the defendant's employees to the plaintiff in this case was not " first aid" covered by the statute.

The case was tried to the court and the court heard evidence and testimony on April 13, 14, and 15, 2016, from the following fact witnesses: Ashley Gill, Lee Roy Bember, Frank David, Greg Thornhill, Carlos Reyes and Lindsey Martus. The court heard testimony from the following expert witnesses: Frank Mineo and Paul Girard. Numerous exhibits were also admitted into evidence. The court ordered post trial briefs to be submitted simultaneously on or before June 29, 2016. The defendant did not submit its brief until July 6, 2016, one week after the plaintiff submitted its brief. On July 8, 2016, the plaintiff filed an objection to the submission of the defendant's brief and requested the court to reject the defendant's brief since it had a distinct advantage over the plaintiff by having plaintiff's brief to review a week prior to filing its brief. On July 25, 2016, the court overruled the plaintiff's objection, however, the court allowed the plaintiff to file a reply brief by no later than August 8, 2016. The plaintiff filed his reply brief on August 8, 2016.

II

DIRECTED VERDICT

Pursuant to Practice Book § 15-8, the defendant, at the close of the plaintiff's case moved for a judgment of dismissal on grounds that the plaintiff failed to make out a prima facie case. The defendant argued that it is entitled to a dismissal of the plaintiff's case because the plaintiff failed to make out a prima facie case that its employees, Frank David and Greg Thornhill breached the standard of care. The defendant further argued that the plaintiff's case should be dismissed because the defendant is entitled to immunity under § 52-557b(b) because its employees qualify for immunity under the statute. The defendant maintains that it produced sufficient evidence at trial to establish that its employees were certified by the American Heart Association and that they rendered first aid to the plaintiff at the time that his diabetic crisis occurred. The defendant argued that because its employees meet the statutory criteria for immunity, it is also immune from liability as a matter of law, and therefore the plaintiff's case should be dismissed in accordance with Practice Book § 15-8.

This court ruled from the bench on the defendant's motion for dismissal of the plaintiff's case on the ground that the plaintiff failed to make out a prima facie case that the defendant's employees breached the standard of care. In denying the motion on this ground, the court applied the appropriate legal standard for dismissal pursuant to § 15-8 which provides that: " The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it . . . In testing the sufficiency of the evidence, the court compares the evidence with the allegations of the complaint . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Citations omitted; emphasis in original; internal quotation marks omitted.) Hurlburt v. DeRosa, 137 Conn.App. 463, 468-69, 49 A.3d 249 (2012); See Trial Record, April 15, 2016, pp. 73-74. The court reserved decision on the issue of immunity pursuant to § 52-557b(b) which the defendant pled as a special defense. Trial Record, April 15, 2016, pp. 73-74.

With respect to the defendant's claim that the plaintiff failed to make out a prima facie case because the defendant is immune pursuant to § 52-557b(b), " '[a] motion for dismissal is not generally granted when based on a special defense, such as . . . [immunity] . . .' John H. Kolb & Sons, Inc. v. G& L Excavating, Inc., 76 Conn.App. 599, 606, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003); Resnik v. Morganstern, supra, at 42, 122 A. 910 (plaintiff not bound to meet defendant's affirmative defenses in establishing case); see also Gambardella v. Apple Health Care, Inc., 86 Conn.App. 842, 843 n.5, 863 A.2d 735 (2005); Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992). That fundamental principle has not been altered or modified since its inception in 1923, and we see no compelling reason to do so now. As originally stated by our Supreme Court in Resnik and later reiterated by this court in John H. Kolb & Sons, Inc., '[i]f this were not so, a plaintiff would be compelled to assume the burden of proving not only his own case but meeting the special defenses of the defendant.' (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G& L Excavating, Inc., supra, at 606, 821 A.2d 774." Sullivan v. Thorndike, 104 Conn.App. 297, 310-11, 934 A.2d 827 (2007). The court therefore denies the defendant's motion for dismissal on the immunity ground and will address that issue when the court addresses the defendant's special defense of immunity.

III

STANDARD OF REVIEW

" It is an abiding principle of our jurisprudence that [t]he sifting and weighing of evidence is peculiarly the function of the trier [of fact]. [N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier has the witnesses before it and is in the position to analyze all the evidence. The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Citations omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 664, 897 A.2d 710 (2006).

" It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." (Citations omitted; internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). The trier of fact must evaluate the credibility of both testimonial and documentary evidence. Coombs v. Phillips, 5 Conn.App. 626, 627, 501 A.2d 395 (1985) (per curiam). " The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, 870 A.2d 1147, cert. denied, 274 Conn. 906, 876 A.2d 1198 (2005).

" The trier of fact must observe the demeanor of witnesses and draw inferences as to the motives underlying their testimony and conduct." Christie v. Eager, 129 Conn. 62, 64-65, 26 A.2d 352 (1942). " [T]he trier of fact's assessment of the credibility of . . . witnesses . . . is made on the basis of its firsthand observation of their conduct, demeanor and attitude . . . The weight to be given to the evidence and to the credibility of witnesses is solely within the determination of the trier of fact." (Internal quotation marks omitted.) Machado v. Statewide Grievance Committee, 93 Conn.App. 832, 839, 890 A.2d 622 (2006). " It is well established that [t]he trier of fact may accept or reject the testimony of any witness . . . The trier can, as well, decide what--all, none, or some--of a witness' testimony to accept or reject." (Citation omitted; internal quotation marks omitted.) Wilson v. Hryniewicz, 51 Conn.App. 627, 633, 724 A.2d 531, cert. denied, 248 Conn. 904, 731 A.2d 310 (1999).

IV

BURDEN OF PROOF/STANDARD OF PROOF

The burden of proof is on the plaintiff to prove all of the essential allegations of its complaint and on the defendant to prove all of the essential elements of its affirmative defenses. See Lukas v. New Haven, 184 Conn. 205, 211, 439 A.2d 949 (1981). " While the plaintiff is entitled to every favorable inference that may be legitimately drawn from the evidence, and has the same right to submit a weak case as a strong one, the plaintiff must still sustain the burden of proof on the contested issues in the complaint and the defendant need not present any evidence to contradict it . . . The general burden of proof in civil actions is on the plaintiff, who must prove all the essential elements of [its] cause of action by a fair preponderance of the evidence." Gulycz v. Stop and Shop, 29 Conn.App. 519, 523, 615 A.2d 1087, cert. denied, 224 Conn. 923, 618 A.2d 529 (1992). Failure to do so results in judgment for the defendant. Id. In Connecticut, " [a] special Defense is an affirmative defense that must be proven by the defendant." (Internal quotation marks omitted.) Caciapoli v. Lebowitz, Superior Court, judicial district of New Haven, Docket No. CV 08 5020658, (March 4, 2010, Berdon, J.T.R.). Like the plaintiff, the defendant must prove all of the essential elements of its affirmative defense by a fair preponderance of the evidence.

The ordinary civil standard of proof is the fair preponderance of the evidence standard. Freeman v. Alamo Management Co., 221 Conn. 674, 678, 607 A.2d 370 (1992). " The burden of persuasion in an ordinary civil action is sustained if evidence induces in the mind of the trier a reasonable belief that it is more probable than otherwise that the fact in issue is true." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 533, 441 A.2d 151 (1981). The standard of proof, a fair preponderance of the evidence, is " properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

V

FINDINGS OF FACT

From the credible testimony and evidence presented the court finds the following facts to have been proven by a fair preponderance of the evidence.

In the early hours of June 23, 2012, at approximately 3:17 am the defendants' employees, Frank David, Paramedic and Greg Thornhill, EMT were dispatched to the plaintiff's home at 82 Dupont Place in Bridgeport, Connecticut. It is undisputed that on June 23, 2012, David and Thornhill were employed by the defendant and were therefore agents and/or employees of the defendant on that date.

Ashley Gill, the plaintiff's girlfriend who resided with the plaintiff and their two children at the time, called 911 for medical assistance because the plaintiff who is a diabetic was having a diabetic crisis. According to the defendant's Patient Care Report (PCR), when David and Thornhill arrived, they took the plaintiff's vital signs and noted that his Glasgow Coma Scale was 6, and blood glucose was 49 mg/dl. Thereafter, an IV was started while the plaintiff was lying on his back on his bed. Gill observed that David attempted vascular access in the left forearm to administer the IV, however he was unsuccessful. Upon observing this, Gill advised David that the plaintiff is a " hard stick, " at which point David reached across the plaintiff's body to attempt vascular access in the plaintiff's right forearm which was successful. David began administering the 50% dextrose which is used in emergency care to treat hypoglycemia. While the medication was first being administered, Gill observed that the IV needle did not appear to be fully inserted. As the dextrose medication entered the plaintiff's forearm, Gill observed the plaintiff yell out in pain, and she observed that his arm was swollen. It is undisputed that dextrose medication can cause tissue necrosis and or death if it enters the " third space" of the forearm instead of the vein. David acknowledged that he was aware of dextrose causing tissue necrosis if entered into the third space of the forearm and not the vein. David also acknowledged that the dextrose solution entered the tissue of the plaintiff's forearm, instead of the vein. David further acknowledged that the dextrose solution entered the plaintiff's forearm, while he was pushing the plunger on the medication tube when the IV was not properly inserted. David also acknowledged that it was his responsibility to take all steps necessary to ensure that this did not occur. David noticed swelling in the plaintiff's right arm and discontinued the IV, however at that point, 12.5 grams of dextrose had already entered the plaintiff's right forearm. It is undisputed that the dextrose medication infiltrated the plaintiff's arm, and when he arrived at the hospital, he was diagnosed with compartment syndrome as a result of the infiltration, which required an emergency fasciotomy.

There was much testimony about whether the plaintiff's youngest child who at the time, was seven months old, was on the bed with the plaintiff or was not on the bed during the administration of the dextrose into the plaintiff's arm. It is the defendant's contention, and David testified that, after he began administering the dextrose into the plaintiff's arm, Gill came over to the playpen where the baby was sleeping, picked the baby up out of the playpen and placed the baby back onto the bed. The defendant further claims, and David further testified that the IV became dislodged when David attempted to move the baby from the bed back into the playpen, to keep the baby from being struck by the plaintiff when the plaintiff began to arouse after David began administering the dextrose.

The plaintiff claims and Gill testified that when David and Thornhill first arrived, her oldest child, Lee, was asleep in the toddler bed and the baby, Levi was asleep in the playpen on the floor next to the bed. Gill testified that she never put the baby on the bed and would never do such a thing while the plaintiff was having a diabetic reaction because it would be unsafe for the baby. Gill testified that she had no recollection of the children being an issue, or being asked to move the children at any time David and Thornhill were in the apartment. Gill graduated from high school and has training in and worked as a home health aide.

In evaluating the credibility of the witnesses, this court considered their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, their manner in responding to questions and whether they were candid and forthright or evasive and incomplete, their interest or lack of interest in the case, and the consistency or inconsistency of their testimony in relation to other evidence, including exhibits in the case. The court does not find David credible. His prior deposition testimony is totally inconsistent with his testimony before this court as to how the baby was allegedly placed back onto the bed by Gill at the time he initially started to administer the dextrose into the plaintiff's right arm. This court not only finds both testimonies inconsistent, but incredulous. David testified in his deposition that for no reason, Gill crawled behind the plaintiff on the bed and reached into the playpen, removed the baby from the playpen and placed the baby back onto the bed with the plaintiff. During trial, he testified that for no reason, Gill walked over to the playpen, picked the baby up out of the playpen, and placed the baby back onto the bed next to the plaintiff. This inconsistent testimony places serious doubt on the truthfulness of the narrative provided by David to St. Vincent's Hospital relating to the baby having to be removed from the bed by David and the cause of the dislodgment of the IV. It also places serious doubt on the credibility of David's testimony as to how he secured the IV onto the plaintiff's right arm. Accordingly, the court finds Gill's testimony more credible and concludes that the baby was not on the bed at the time David administered the dextrose to the plaintiff. This court further finds that the more credible scenario is that David failed to properly secure the IV to the plaintiff's right arm, and as the plaintiff began to receive the dextrose, he began to arouse and began moving his arms, which should have been anticipated by the EMS personnel, who should have properly restrained the plaintiff's arms to prevent dislodgment of the IV and injury to the plaintiff. The plaintiff was transported to St. Vincent's Medical Center in Bridgeport, Connecticut where he was diagnosed with compartment syndrome of his right forearm and underwent emergency surgery. The court may find additional facts as necessary in deciding the merits.

VI

LIABILITY

This is a medical negligence cause of action and the court is guided by General Statutes § 52-184c. The plaintiff, to prevail, must first prove a breach of the standard of care by the defendant's employees, David and Thornhill, both Emergency Medical Service (EMS) providers. General Statutes § 52-184c(a) provides in relevant part: " In any civil action to recover damages resulting from personal injury . . . in which it is alleged that such injury . . . resulted from the negligence of a health care provider . . . the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. In this case, both David and Thornhill are EMS providers. The prevailing professional standard of care that applies to them is thus the level of care, skill and treatment which, in light of all relevant and surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent EMS providers. The standard applies to emergency medical care and treatment. In order to establish liability, the plaintiff must prove by a fair preponderance of the evidence that David's and Thornhill's conduct represented a breach of the prevailing professional standard of care. See Jarmie v. Troncale, 306 Conn. 578, 50 A.3d 802 (2012).

" [P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . . [T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Citations omitted; internal quotation marks omitted.) Id., 587-88.

Thus, the plaintiff has the burden of proving by a fair preponderance of the evidence that the defendant's employees' conduct represented a breach of the prevailing professional standard of care. Under our law, the plaintiff must prove by expert testimony both, what the requisite standard of care is, and his allegation that David's and Thornhill's conduct represented a breach of that standard. Finally, the plaintiff must establish, through expert testimony, that the breach of that standard of care was the proximate cause of his injuries.

" An emergency medical service provider does not guarantee a good medical result. A poor medical result is not, in itself, evidence of any wrongdoing by the health care provider. The question on which this court must focus is whether [David and Thornhill] have breached the prevailing professional standard of care." Giampietro v. The Eye Care Group, P.C., Superior Court, judicial district of New Haven, Docket No. CV-12-6034486-S, (August 3, 2016, Agati, J.); see also, Connecticut Civil Jury Instruction, 3.8-3.

As previously noted, in evaluating all of the witnesses, this court considered their appearance and demeanor on the witness stand, the consistency or inconsistency of their testimony, their memory or lack thereof of certain events, their manner in responding to questions and whether they were candid and forthright or evasive and incomplete, their interest or lack of interest in the case, and the consistency or inconsistency of their testimony in relation to other evidence, including exhibits in the case. After reviewing all of the evidence, including exhibits, and after having considered the testimony of the witnesses, both lay and expert, and after evaluating the credibility of the witnesses, the court finds that the plaintiff has proven by a fair preponderance of the evidence, that the defendant breached the standard of care in that its employees failed to adequately secure the IV catheter after insertion so as to prevent dislodgment from the plaintiff's vein; in that they failed to properly monitor the IV catheter after insertion into the plaintiff's right forearm; in that they failed to pay proper attention while injecting the dextrose medication into the plaintiff's right arm; and in that they failed to properly restrain the plaintiff so as to prevent the IV catheter from becoming dislodged. The court finds that as a proximate result of the negligence of the defendant's employees, the IV infiltrated¹ and entered the " third space" or surrounding tissues of the plaintiff's right forearm which resulted in compartment syndrome of the plaintiff's right forearm.

1 " An infiltrated IV is one where the needle has either punctured the vein and exited the other side or has pulled out of the vein. In either case, the fluid is flowing into the surrounding tissues instead of into the vein . . . Certain high-concentration medications (such as 50 percent dextrose) can cause death of surrounding tissue. In addition to complaining of pain, the patient will show swelling at the site . . ." Pl. Ex. 36.

The plaintiff's expert, Frank P. Mineo, Ph.D., EMT-P testified credibly that the defendant's employee, David, failed to meet the required standard of care by failing to properly secure the IV to the plaintiff's right arm and by failing to monitor the IV while administering the dextrose solution which is known to be necrotic. Dr. Mineo also testified credibly that patients who receive this medication often react suddenly and can move around and not comprehend what is happening. He further explained that the defendant's employees should have anticipated this, and if the plaintiff was moving--which this court found that he was--while they were attempting to administer the medication they should have used appropriate restraints. The defendant's expert, Paul R. Girard acknowledged that " at the point where [the plaintiff] started receiving sugar, the dextrose and began to flail about, at that point they should have made an attempt to hold him down and limit any injury to himself or others." T.R., April 15, 2016, p. 123. Mr. Girard opined that the IV infiltrated " probably while [the plaintiff] was flailing about." Id., 124. Accordingly, the court concludes that the plaintiff has met his burden of proof that David and Thornhill breached the standard of care regarding the treatment provided to the plaintiff on June 23, 2012, and therefore finds that they were negligent. As employees and/or agents of the defendant, the court also finds the defendant negligent.

VII

SPECIAL DEFENSE OF IMMUNITY--§ 52-557b(b)

The plaintiff has sued the defendant in its capacity as the employer of the emergency medical personnel who treated the plaintiff based on a theory of vicarious liability. The plaintiff did not sue the defendant's employees. In response to the allegations against it, the defendant raised the special defense of immunity pursuant to General Statutes § 52-557b.

General Statutes § 52-557b (" 'Good Samaritan law.' Immunity from liability for emergency medical assistance, first aid or medication by injection. School personnel not required to administer or render. Immunity from liability re automatic external defibrilators.") is our state's codification of what has been known as the Good Samaritan law. Section 52-557b(b) provides in relevant part: " A paid or volunteer firefighter or police officer, a teacher or other school personnel on the school grounds or in the school building or at a school function, a member of a ski patrol, a lifeguard, a conservation officer, patrol officer or special police officer of the Department of Energy and Environmental Protection, or emergency medical service personnel, who has completed a course in first aid offered by the American Red Cross, the American Heart Association, the National Ski Patrol, the Department of Public Health or any director of health, as certified by the agency or director of health offering the course, and who renders emergency first aid to a person in need thereof, shall not be liable to such person assisted for civil damages for any personal injuries which result from acts or omissions by such person in rendering the emergency first aid, which may constitute ordinary negligence . . . The immunity provided in this subsection does not apply to acts or omissions constituting gross, wilful or wanton negligence."

In the present case, the defendant asserts that it is entitled to immunity under § 52-557b(b) because its employees qualify for immunity. It maintains that it produced sufficient evidence at trial to establish that its employees were certified by the American Heart Association and that they rendered first aid to the plaintiff at the time his injuries occurred. Thus, the defendant reasons that because its employees meet the statutory criteria for immunity, it is also immune from liability as the employer. The defendant relies on the legislative history of § 52-557b, Superior Court decisions interpreting and applying this statute, and principles of vicarious liability to support its contention that immunity afforded to its employees also extends to the employer.

In response, the plaintiff points out that the language of § 52-557b(b) does not explicitly or implicitly refer to for-profit business entities and their ability to claim immunity. The plaintiff further maintains that the defendant's employees were not engaged in first aid as contemplated by the statute. The plaintiff relies on a plain meaning interpretation of § 52-557b(b), the legislative history of this statute, and Connecticut cases interpreting the federal Volunteer Protection Act of 1997--an analogous immunity statute--in support of its position.

As the parties correctly point out, no Connecticut court has directly addressed the question of whether § 52-557b includes for-profit business entities that employ the class of individuals enumerated in the statute.² Given that this court lacks clear guidance in the case law on this issue, it must construe § 52-557b to determine if the language itself and the legislative intent underlying its provisions extends immunity to for-profit business entities, like the defendant, directly or through their employees. As will be more fully articulated, this court concludes that § 52-557b, by its plain language and by examination of its history and public policy, does not afford immunity to the defendant. In reaching this conclusion, this court engages in the following analyses to reach its conclusion: (1) plain language interpretation in accordance with General Statutes § 1-2z; (2) extratexual evidence relevant to the scope and purpose of § 52-557b; and (3) relevant judicial authorities from Connecticut and other jurisdictions.

2 The defendant cites to Superior Court cases for the proposition that immunity extends to for-profit business entities and employers, like itself. These cases, however, are unpersuasive in that they are conclusory and not instructive on how the courts reached the conclusion that § 52-557b applies to for-profit business entities and employers. It is also not clear whether the specific issue was raised before the courts.

A

Plain Language Analysis

General Statutes § 1-2z provides: " The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Emphasis added.) " When interpreting a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . General Statutes § 1-2z requires this court first to consider the text of the statute and its relationship to other statutes to determine its meaning. If, after such consideration, the meaning of the statutory text is plain and unambiguous and does not yield absurd or unworkable results, we cannot consider extratextual evidence of the meaning of the statute. Only if we determine that the text of the statute is not plain and unambiguous may we look to extratextual evidence of its meaning, such as the legislative history and circumstances surrounding its enactment . . . the legislative policy it was designed to implement, and . . . its relationship to existing legislation and common law principles governing the same general subject matter . . . The proper test to determine whether the meaning of the text of a statute is ambiguous is whether the statute, when read in context, is susceptible to more than one reasonable interpretation." (Internal quotation marks omitted.) Eagen v. Commission on Human Rights & Opportunities, 135 Conn.App. 563, 574-75, 42 A.3d 478 (2012).

" As with all issues of statutory interpretation, we look first to the language of the statute . . . In construing a statute, common sense must be used and courts must assume that a reasonable and rational result was intended . . . Furthermore, [i]t is a basic tenet of statutory construction that the legislature [does] not intend to enact meaningless provisions . . . [I]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous." (Citations omitted; internal quotation marks omitted.) Dorry v. Garden, 313 Conn. 516, 525, 98 A.3d 55 (2014).

The language of § 52-557b(b) makes clear that the following classes of people may claim immunity in accordance with its provisions: " [a] paid or volunteer firefighter or police officer, a teacher or other school personnel on the school grounds or in the school building or at a school function, a member of a ski patrol, a lifeguard, a conservation officer, patrol officer or special police officer of the Department of Energy and Environmental Protection, or emergency medical service personnel, who has completed a course in first aid offered by the American Red Cross, the American Heart Association, the National Ski Patrol, the Department of Public Health or any director of health, as certified by the agency or director of health offering the course . . ." Nowhere within this subsection are for-profit business entities or employers of those enumerated in subsection (b) explicitly included among those eligible for immunity. Thus, the court cannot infer from the language of the statute that immunity granted to these classes of individuals under the statute extends to their employers.

Even when examining subsection (b) in relation to the other subsections of § 52-557b, this court is unable to interpret it in such a way that would permit entities, like the defendant to claim immunity from civil actions. Subsection (a)³ narrowly applies to licensed physicians, registered nurses, medical technicians or other persons trained in pulmonary resuscitation, or persons operating automatic external defibrilators who voluntarily and gratuitously render emergency medical or professional assistance outside the ordinary course of their employment. Subsections (c), (d), and (e) mention corporations and business entities, but within specific contexts, which again, convinces this court that immunity cannot be extended, generally, to for-profit business entities outside of these particular circumstances. Subsections (c)⁴ and (d)⁵ address railroad companies. Subsection (d) is the only part of § 52-557b that explicitly permits an employer to claim immunity. However, subsection (d) is limited to railroad companies that provide emergency medical training or equipment to employees that meet the criteria of subsection (c). Furthermore, subsection (e) addresses immunity from liability as a result of injuries from the use of cartridge injectors. Similarly to subsection (d), subsection (e) limits the extension of liability to corporations and to volunteer workers associated with such corporations that meet the specified criteria set out in the sub-parts of subsection (e).⁶

3 Subsection (a) provides: " A person licensed to practice medicine and surgery under the provisions of chapter 370 or dentistry under the provisions of section 20-106 or members of the same professions licensed to practice in any other state of the United States, a person licensed as a registered nurse under section 20-93 or 20-94 or certified as a licensed practical nurse under section 20-96 or 20-97, a medical technician or any person operating a cardiopulmonary resuscitator or a person trained in cardiopulmonary resuscitation in accordance with the guidelines set forth by the American Red Cross or American Heart Association, or a person operating an automatic external defibrillator, who, voluntarily and gratuitously and other than in the ordinary course of such person's employment or practice, renders emergency medical or professional assistance to a person in need thereof, shall not be liable to such person assisted for civil damages for any personal injuries which result from acts or omissions by such person in rendering the emergency care, which may constitute ordinary negligence. A person or entity that provides or maintains an automatic external defibrillator shall not be liable for the acts or omissions of the person or entity in providing or maintaining the automatic external defibrillator, which may constitute ordinary negligence. The immunity provided in this subsection does not apply to acts or omissions constituting gross, wilful or wanton negligence. With respect to the use of an automatic external defibrillator, the immunity provided in this subsection shall only apply to acts or omissions involving the use of an automatic external defibrillator in the rendering of emergency care. Nothing in this subsection shall be construed to exempt paid or volunteer firefighters, police officers or emergency medical services personnel from completing training in cardiopulmonary resuscitation or in the use of an automatic external defibrillator in accordance with the guidelines set forth by the American Red Cross or American Heart Association. For the purposes of this subsection, " automatic external defibrillator" means a device that: (1) is used to administer electric shock through the chest wall to the heart; (2) contains internal decision-making electronics, microcomputers or special software that allows it to interpret physiologic signals, make medical diagnosis and, if necessary, apply therapy, (3) guides the user through the process of using the device by audible or visual prompts; and (4) does not require the user to employ any discretion or judgment in its use."

4 Subsection (c) provides: " An employee of a railroad company, including any company operating a commuter rail line, who has successfully completed a course in first aid, offered by the American Red Cross, the American Heart Association, the National Ski Patrol, the Department of Public Health or any director of health, as certified by the agency or director of health offering the course, and who renders emergency first aid or cardiopulmonary resuscitation to a person in need thereof, shall not be liable to such person assisted for civil damages for any personal injury or death which results from acts or omissions by such employee in rendering the emergency first aid or cardiopulmonary resuscitation which may constitute ordinary negligence. The immunity provided in this subsection does not apply to acts or omissions constituting gross, wilful or wanton negligence."

5 Subsection (d) provides in relevant part: " A railroad company, including any commuter rail line, which provides emergency medical training or equipment to any employee granted immunity pursuant to subsection (c) of this section shall not be liable for civil damages for any injury sustained by a person or for the death of a person which results from the company's acts or omissions in providing such training or equipment or which results from acts or omissions by such employee in rendering emergency first aid or cardiopulmonary resuscitation, which may constitute ordinary negligence . . ."

6 Subsection (e)(3) provides in relevant part: " A corporation, other than a licensed health care provider, that is exempt from federal income taxation under Section 501 of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, which provides training in the use of cartridge injectors to any volunteer worker granted immunity pursuant to subdivision (2) of this subsection shall not be liable for civil damages for any injury sustained by, or for the death of, a child sixteen years of age or younger who is participating in a program offered by such corporation, which injury or death results from acts or omissions by such worker in using a cartridge injector, which may constitute ordinary negligence." (Emphasis added.)

Because this court must assume that " the legislature [does] not intend to enact meaningless provisions" and " that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous, "; Dorry v. Garden, supra, 313 Conn. 525; the narrow language of these subsections is significant. As evidenced by the above-cited subsections of § 52-557b, had the legislature intended to broaden the scope of immunity that is conferred upon the employers listed as qualified for immunity, or to include, specifically, for-profit businesses that provide emergency medical services, such as the defendant here, then the legislature could have done so as it had when it expanded immunity to railroad companies in subsection (d) and corporations exempt from federal income taxation under § 501 of the Internal Revenue Code of 1986 in subsection (e). If entities are mentioned in § 52-557b, the statute specifically identifies the type of entity and the specific circumstances under which immunity would extend to such entities. There is no ambiguity that entities or employers similar to, or the same as the defendant are not deemed qualified for immunity.

In addition, to read the plain language of the statute so as to confer immunity on for-profit business entities, in general, or in their capacity as employers, would lead to absurd results in that it would abrogate the common law in the absence of a clearly expressed legislative intent to do so. " [U]nder the doctrine of respondeat superior, an employer generally is liable for intentional torts committed by his employees to the same extent that he is liable for damages arising out of the negligent or reckless conduct of those employees." Matthiessen v. Vanech, 266 Conn. 822, 840 n.16, 836 A.2d 394 (2003). " It is well settled that [i]n determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed . . . We recognize only those alterations of the common law that are clearly expressed in the language of the statute because the traditional principles of justice upon which the common law is founded should be perpetuated." (Internal quotation marks omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 265-66, 757 A.2d 526 (2000).

Subsection (b) states that the individuals listed " shall not be liable to such person assisted for civil damages for any personal injuries which result from acts or omissions by such person in rendering the emergency first aid, which may constitute ordinary negligence . . . The immunity provided in this subsection does not apply to acts or omissions constituting gross, wilful or wanton negligence." (Emphasis added.) The provisions of subsection (b) require the trial court to determine (1) whether the individual who allegedly caused harm to the plaintiff is within the classes of individuals set out in the statute; and (2) whether the acts which allegedly caused the harm constituted ordinary negligence or gross, wilful, or wanton negligence. Because a trial court must make a finding of negligence, the effect of immunity under this statute is not that an individual was not negligent. Rather, the effect is that if an individual is found to have committed harmful acts that a trial court finds to be ordinary negligence, then that individual is immune from liability. A finding of immunity for ordinary negligence is not the same as a finding that the individual did not act negligently. Accordingly, for the purposes of applying § 52-557b(b), if a trial court determines that an employee's act was negligent, whether ordinary or gross, this determination would necessarily implicate an employer's liability under the doctrine of respondeat superior.

There is no express intent in subsection (b) or other subsections of § 52-557b to alter the common-law rule regarding the liability of employers, like the defendant in the present case, under respondeat superior. Only subsection (d) references the altering of employer liability, but this subsection is narrowly stated to apply to railroad companies that provide emergency medical training or equipment to employees that meet the criteria of subsection (c). To conclude that § 52-557b(b) vicariously immunizes entities such as the defendant, when there is no clear intent from the statute's plain language to alter the common law, would be in derogation of the common law and beyond this court's authority. See Osborn v. Elm City Livery, Inc. Superior Court, judicial district of Waterbury, Docket No. X02-CV-00-0167619-S (August 2, 2002, Sheldon, J.) (32 Conn.L.Rptr. 620, 621, ) (" [I]t is not this Court's job to write new laws, but rather to enforce such laws as the legislature has enacted. Here, then, the Court must be guided by the legislature's words, not by its own sense of what might be good public policy"). As a result of applying our well-established and controlling principles of statutory construction to § 52-557b, this court concludes that § 52-557b does not apply to the defendant and, therefore, the defendant's special defense fails as a matter of law.

B

Extratextual Evidence

The above analysis is dispositive of this court's determination regarding the defendant's special defense. Nevertheless, this court's research of extratextual evidence that is instructive in understanding and interpreting § 52-557b merits discussion given that the parties have briefed the application of extratextual evidence, given the absence of authority on the question of immunity as it is presented here, and given that this issue appears to be one of first impression.

(i)

Background on § 52-557b

The nomenclature " Good Samaritan" finds its origin in a parable from the Bible. In this parable, " a man on the way from Jerusalem to Jericho is robbed, beaten, and left for dead. Two passers-by of significant social and religious status see the injured man, but choose to cross to the other side of the road. A third traveler of less repute, a Samaritan, comes to the man's aid, takes him to an inn, tends to him through the night, and then pays the innkeeper the next morning to continue the man's care." TransCare Maryland, Inc. v. Murray, 431 Md. 225, 227, 64 A.3d 887 (2013).⁷

7 This parable was also referenced during the 1963 Senate session when this state first considered passage of a Good Samaritan law: " I would recall though in discussing the name of this bill that the story of the good Samaritan recalls tells [sic] of two or three Levites who passed by and left the man lying by the road before the good Samaritan came along." 10 S. Proc., Pt. 5, 1963 Sess., p. 1692 (remarks of Senator Falsey).

The Maryland Supreme Court in TransCare Maryland, Inc. also provided a succinct overview of the foundation of Good Samaritan laws: " Under the common law, there is no general duty to provide assistance to those in peril . . . Moreover, under general principles of tort law, one who voluntarily chooses to aid another owes that person a duty of care; a failure to exercise such care may result in legal liability . . . This risk of potential liability led to the unsatisfactory result that health care professionals capable and willing to provide emergency medical services had (in theory, at least) a disincentive to do so.

" Beginning in California in 1959, legislatures in every state enacted laws designed to eliminate this disincentive and to encourage medical professionals (and often, volunteers in general) to provide emergency assistance by granting them immunity from liability for ordinary negligence . . . From the outset, such laws have generally been labeled the 'Good Samaritan Act' or 'Good Samaritan Law, ' both in Maryland and elsewhere." (Citations omitted.) TransCare Maryland, Inc. v. Murray, supra, 431 Md. 232-33.

The history of Connecticut's Good Samaritan law begins with Public Act 63-205. When enactment of a Good Samaritan law was proposed to the General Assembly, the debate among the legislators focused on the central purpose of the bill and the scope of immunity provided by the bill. See 10 H.R. Proc., Pt. 3, 1963 Sess., p. 1172-83; 10 S. Proc., Pt. 5, 1963 Sess., p. 1682-95. As to the central purpose of the bill, there was discussion as to whether the bill would be enacted with the purpose of protecting physicians from exposure to liability or of ensuring the public health and safety in that those in peril at the scene of an accident would be assisted. In introducing the bill in the House of Representatives, Representative Later stated: " This is known as the good samaritan bill that simply provides that no physician, who in good faith, renders emergency care shall be liable for civil damages where he renders such care without compensation. It provides [that] doctors as a practical result [do] not stop at the scene of an accident now because we are afraid of being sued. But the doctor, a trained person who can best render aid. This bill simply provides that when a doctor treats without compensation is an emergency that he shall not be liable for damages." 10 H.R. Proc., supra, p. 1173; see also id., 1176 (remarks of Representative Durtis: " I lived many years with my doctor brother in New York and he would never stop and give assistance out in a public accident because he was afraid of the suits that would be brought against him for giving aid to the needy and that is one thing that we need this bill very badly").

To the contrary, Representative Cunningham remarked: " Mr. Speaker, maybe the intent of this bill is to protect doctors, but I think that the real purpose is to protect ourselves and if we get into some accident on the highway or someplace else it would be very nice to know that the doctors weren't just sailing by because they were afraid of being sued." Id., 1175; see also id., 1179 (remarks of Representative Belden: " [I]t isn't a question of [that] doctors favor this legislation or not, it's a question of what we think is right for the best interest of the public"), 1176 (remarks of Representative Stevens: " It has been said that doctors have been sued that is because the doctors are afraid to stop and this should be brought out because I think this would help the general public not the doctors"), 1180 (remarks of Representative Satter: " I think this bill reflects in a way the kind of judgment sometimes legislators have to make. Namely, a balance of the public interest. In this case two considerations. On the one hand relieving a doctor of liability in an emergency situation where he may be clearly at fault and on the other hand being certain that medical attention will be afforded to a person on the scene of an accident. Seems to me that when the balance is stated in that way it should be on the side of assuring there will be adequate medical attention at the scene of an accident"); 10 S. Proc., supra, p. 1686 (remarks of Senator Falsey: " I don't think that we should approach this bill from the point of view of protecting doctors. Testimony that I've heard is to get treatment for people who need it . . .").

Given the above-cited views on Public Act 63-205, it is clear that while the legislature understood that the provisions would necessarily benefit physicians in that they would not face liability for ordinary negligence during the course of providing assistance in emergency situations, the primary purpose of the proposed Good Samaritan law was to protect the public and ensure its safety. The Good Samaritan law would have the effect of incentivizing physicians to respond to medical emergencies with the ultimate goal of enhancing public safety and assuring the public that they are more likely than not to get medical assistance in dire situations.

As to the scope of the bill, there were discussions during both the House and Senate sessions regarding inclusion of individuals who were not licensed to practice medicine by law, but who were still qualified to provide certain medical treatment or assistance in emergencies such as nurses and police officers. See 10 H.R. Proc., Pt. 3, supra, p. 1174 (remarks of Representative Keilty), 1174-75 (remarks of Representative Bigos), 1175 (remarks of Representative McLoughlin). The remarks that addressed expanding the scope of the Good Samaritan law to include more than just licensed physicians were concerned that there were categories of professionals who were trained or otherwise qualified to also render medical assistance. In response to these remarks, other legislators expressed that, at the time of the bill's proposal, no concerns were raised regarding liability of nurses or firefighters. 10 H.R. Proc., Pt. 3, supra, p. 1174 (remarks of Representative Later: " The serious problem has been with the doctors, we have heard of nothing nor was one stated at the hearing where nurses had ever been sued. The doctors are the ones who are"), 1176 (remarks of Representative Spiegel: " At no time during the hearings, not until I just walked into this room, had anyone ever advised of his desire to have nurses included, police included, or anyone else . . . [I]t is not felt that there is any need has been demonstrated on behalf of nurses policeman or anyone else . . ."). Thus, legislators who opposed the inclusion of other categories of individuals qualifying for immunity, expressed the belief that the focus should be on physicians when the main concern brought forward was lawsuits against physicians and the effect of those lawsuits on the public safety. Id.

Furthermore, legislators expressed concerns about extending immunity to more people generally. See 10 H.R. Proc., Pt. 3, supra, p. 1177-78 (remarks of Representative Scoville: " Pretty soon it will be the bartender and the bus driver who will want to come in and say as long as I act in good faith there is no reason why I should be liable for my negligent act"), 1178 (remarks of Representative Webber: " I rise to tell you that I'm strongly in favor of this bill and the way it's written. If we include all the other members of the so call army of first aid experts, I can foresee some very serious problems. Some of our so call amateur doctors or some of the people who might have had two weeks of first aid training in the army might stop at the scene of an accident might stop to help a patient and know nothing about what he's doing or in his own mind he would think that he was a graduate physician, that could cause very serious harm to the patient and resulting in the permanent injury. I would suggest very strongly for the reason that the bill remain as it's written"); 10 S. Proc., supra, 1688 (remarks of Senator Relihan regarding proposed amendment to remove " licensed under the provisions of Chapter 370 of the General Statutes or members of the same profession licensed to practice in any other State of the United States" " I feel that this amendment would extend immunity to 'witch doctors and herb doctors' and all sorts of other people who come along and render assistance and do more harm than good"), 1688 (remarks of Senator Gladstone: " [This amendment] would permit anybody stopping along the way to render voluntarily and seriously medical aid to an injured person without any regard to any liability for any service he did. I think that's an extremely dangerous and should not be passed").

Given the statute's current language, § 52-557b was ultimately expanded to cover more categories of people than originally contemplated at its inception in 1963. The significance of the above-cited legislative history, however, is the overall sentiment expressed by various legislators toward expanding the reach of immunity. The overall concern of the legislature was that expanding the scope of immunity would lead to abuse of immunity which ultimately would result in harm to the public. Moreover, § 52-557b came into its current form over a long history of amendments starting from 1967 through 2011. The specific categories of individuals that qualify for immunity under § 52-557b have expanded over a number of years by legislative fiat and have been narrowly defined within § 52-557b. To date, the history of § 52-557b suggests that the preservation of public health and safety has been the main public policy goal underlying the provisions of the statute, and that the means by which to fulfill this public policy goal was to create an incentive in the form of immunity. See 12 H.R. Proc. 1967 Sess., p. 3584 (remarks of Representative Neiditz and Representative Lenge regarding expansion of immunity to firefighters, police officers, and ambulance personnel).

If this court were to construe the statute in the way that the defendant proposes, it could increase harm to the public, which the legislature sought to avoid by creating the incentive of immunity. It would diminish the general legal accountability that employers have for the harmful actions of their employees. It would motivate for-profit business entities to cut costs wherever they could. For example, such a construction of § 52-557b would incentivize for-profit business entities and employers, like the defendant, to take shortcuts in training and reeducation. As a result, harmful acts by their employees would touch only the boundary of gross negligence such that immunity would apply. Moreover, such a reading of the statute would exonerate the employees and their employers, and severely limit injured plaintiffs' sources of compensation for their injuries. Had the legislature intended to alter the liability of employers for the harmful acts of their employees in the specific context of rendering emergency medical services, it would have done so explicitly as evidenced by the addition of § 52-557b(e), and as discussed in Section VII A of this memorandum of decision. On the basis of the conclusions drawn from the legislative history, construing § 52-557b to include for-profit business entities and employers of individuals covered by the statute would undermine the legislative intent and public policy of the statute.

(ii)

Relevant Judicial Authorities from Connecticut and Other Jurisdictions

Our courts have favorably cited to the Restatement (Second) on Agency as reliable authority on the law of agency. See Alvarez v. New Haven Register, 249 Conn. 709, 722, 735 A.2d 306 (1999) (regarding damages); Maag v. Homechek Real Estate Services, Inc., 82 Conn.App. 201, 208, 843 A.2d 619, cert. denied, 269 Conn. 908, 852 A.2d 737 (2004) (citing to Alvarez); Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 503-04, 656 A.2d 1009 (1995) (regarding damages). In analogous cases to the present case, our Superior Courts have also cited to the Restatement (Second) on Agency as prevailing common law and as support in concluding that our law on agency does not support the proposition that an agent's immunity from liability is extended to the principal.

In Avenoso v. Mangan, Superior Court, judicial district of Hartford, Docket No. CV-05-4009152-S (February 14, 2016, Tanzer, J.) (40 Conn.L.Rptr. 637), the court decided a similar question of immunity on a motion for summary judgment. The defendants, a volunteer soccer coach and soccer club, moved for summary judgment on the plaintiffs' negligence claims on the ground that the coach was immune from liability under the federal Volunteer Protection Act (VPA)⁸ and that because the coach was immune then the soccer club was also immune given the plaintiffs' claims against the club were based solely on vicarious liability. Id., 639. Although the Act specifically states that the immunity afforded to volunteers does not affect the liability of nonprofit organizations and governmental entities for the resulting harm, ⁹ the trial court noted: " Such a result is consistent with the prevailing common-law rule that '[i]n an action against a principal based on the conduct of a servant in the course of employment . . . [t]he principal has no defense because of the fact that . . . the agent had an immunity from civil liability as to the act.' 1 Restatement (Second) Agency § 217, pp. 468-75 (1958)." (Emphasis added.) Id., 640.

8 Section 14503 of Title 42 of the United States Code provides in relevant part: " [N]o volunteer of a nonprofit organization or governmental entity shall be liable for harm caused by an act or omission of the volunteer on behalf of the organization or entity if . . . (1) the volunteer was acting within the scope of the volunteer's responsibility in the nonprofit organization or governmental entity at the time of the act or omission [and] (3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer . . ." 42 U.S.C. § 14503(a)(1), (3).

9 Subsection (c) of 42 U.S.C. § 14503 provides: " Nothing in this section shall be construed to affect the liability of any nonprofit organization or governmental entity with respect to harm caused to any person."

The trial court, in Pinos v. Mystic Fire District, Superior Court, judicial district of New London, Docket No. CV-09-5012096-S, (March 30, 2011, Cosgrove, J.), also favorably cited 1 Restatement (Second) Agency § 217 in denying a motion for summary judgment on the ground that even though the fire marshal, the agent, was afforded statutory immunity, the Mystic Fire District, a political subdivision and principal, could not also claim immunity from vicarious liability under what is now General Statutes § 29-298(c).¹⁰ See Pinos v. Mystic Fire District, supra, Superior Court, Docket No. CV-09-5012096-S, . In Pinos, the court disagreed with the Mystic Fire District's argument that because its agent was immune from liability, that it, as the principal, was also immune. Id. In addition to looking at the plain language of the statute to find that it did not include municipal fire districts, the court stated: " [U]nder the law of agency, the fact that the fire marshal, acting as an agent of the Mystic Fire District, has statutory immunity does not affect the Mystic Fire District's liability to the plaintiff. According to the Restatement (Second), Agency § 217: 'In an action against a principal based on the conduct of a servant in the course of employment . . . (b) The principal has no defense because of the fact that . . . (ii) the agent had an immunity from civil liability as to the act.' Comment (b) to Restatement (Second), Agency § 217 provides in relevant part: '[W]here the principal directs an agent to act, or the agent acts in the scope of employment, the fact that the agent has an immunity from liability does not bar a civil action against the principal.' 'Immunities exist because of an overriding public policy which serves to protect an admitted wrongdoer from civil liability. They are strictly personal to the individual and cannot be shared.' 1 Restatement (Second), Agency § 347, comment (a) (1958)." Id.

10 General Statutes § 29-298(c) provides: " No local fire marshal, deputy fire marshal, fire inspector or other inspector or investigator acting for a local fire marshal, who is charged with the enforcement of this part, may be held personally liable for any damage to persons or property that may result from any action that is required or permitted in the discharge of his official duties while acting for a municipality or fire district. Any legal proceeding brought against any such fire marshal, deputy fire marshal, fire inspector or other inspector or investigator because of any such action shall be defended by such municipality or fire district. No such fire marshal, deputy fire marshal, fire inspector or other inspector or investigator may be held responsible for or charged with the costs of any such legal proceeding. Any officer of a local fire marshal's office, if acting without malice and in good faith, shall be free from all liability for any action or omission in the performance of his official duties."

Courts in other jurisdictions have similarly applied a plain language analysis and looked to principles of common law to determine whether statutory immunity, in the context of medical treatment, extends to employers or entities. These courts found that because the statutes at issue did not explicitly include employers, institutions, or corporations, immunity could not extend to these entities; in the absence of explicit language including such entities, these courts concluded that the legislature intended to exclude them and include only those categories of individuals enumerated in the statutes. Moreover, these courts looked to 1 Restatement (Second) Agency § 217 to conclude that inclusion of entities and employers would be in derogation of the common law embodied in § 217 and in their jurisdictions' case law given the absence of clear statutory language or legislative intent to alter the common law. See, e.g., Taplin v. Chatham, 390 Mass. 1, 4, 453 N.E.2d 421 (1983) (concluding that the language of immunity statute which specifically stated that enumerated individuals would not " be personally in any way liable"; that evidence that legislature did not intend to immunize employers whose employees qualified for immunity; and that common-law rule as set out in case law and in Restatement (Second) on Agency, stating that agent's liability does not extend to principal; supported proposition that immunity statute did not extend to defendant municipal employer); Murray v. Plainfield Rescue Squad, 210 N.J. 581, 592-96, 46 A.3d 1262 (2012) (concluding that plain language of immunity statute that included rescue squad members, but not rescue squad entity; that no evidence showed legislative intent to include rescue squad as entity; and that common-law rule as set out in case law and in Restatement (Second) of Agency, stating that agent's liability does not extend to principal; supported proposition that immunity statute did not extend to rescue squad as entity); Regester v. Chester, 568 Pa. 410, 421-24, 797 A.2d 898 (2002) (concluding that plain language of immunity statute extended only to designated individuals and did not convey intention to extend immunity to institutional, corporate, and organizational entities; that no evidence showed legislative intent to include these entities; and that common-law rule as set out in case law adopting the Restatement (Second) on Agency, stating that agent's immunity does not confer immunity upon principal; supported proposition that immunity statute did not extend to defendant hospital); Krachman v. Ridgeview Institute, Inc., 301 Ga.App. 361, 363-65, 687 S.E.2d 627 (2009) (concluding that plain language of immunity statute extended only to designated individuals; that no evidence demonstrated legislative intent to confer immunity on hospitals or other mental health facilities; and that common-law rule as set out in case law and in Restatement (Second) of Agency, stating that agent's liability does not extend to principal; supported proposition that immunity statute did not extend to defendant mental health facility).

In the present case, it is undisputed that the harmful acts were done by the defendant's employees (agents) and that the plaintiff's claims of negligence against the defendant in its capacity as the employer (principal) are based on vicarious liability. In accordance with the above-cited authorities, even if this court were to find that the defendant's employees were immune from liability, this immunity would be personal to the individual employees and would not extend to the defendant, employer. Such a result is not only consistent with prevailing common law, but also with the plain language of the statute that narrowly defines the classes of individuals and entities that qualify for immunity. Therefore, § 52-557b(b) does not protect the defendant from liability for the negligent acts of its employees that resulted in harm to the plaintiff.

For the foregoing reasons, this court concludes that § 52-557b(b) does not apply to the defendant either as a for-profit business entity or as an employer and, therefore, the defendant's special defense fails as a matter of law.¹¹

11 The analysis set out above is dispositive and comprehensive of this court's determination of the application of § 52-557b(b) as raised in the defendant's special defense. Given the above conclusion that as a matter of law, immunity for the defendant's employees under this statute does not extend to the defendant as a for-profit business entity and as an employer, this court need not reach the question of whether the defendant's employees were engaged in emergency first aid for purposes of immunity. This court, however, will briefly address the parties' arguments regarding the definition of " first aid" under § 52-557b(b) since the parties briefed the issue. As the parties have correctly noted, the statute does not define " first aid" or " emergency first aid." In addition, our appellate courts have not provided guidance on the meaning of these terms as used in § 52-557b. Several Superior Courts have addressed the issue of the meaning of these terms. Of those decisions, the reasoning in Hansen v. Mohegan Fire Co., Inc., Superior Court, judicial district of New London at Norwich, Docket No. CV-96-0111388-S (October 1, 2001, Corradino, J.) (30 Conn.L.Rptr. 572, ) and in Osborn v. Elm City Livery, Superior Court, judicial district of Waterbury, Docket No. X02-CV-00-0167619-S (August 2, 2002, Sheldon, J.) (32 Conn.L.Rptr. 620, ) are persuasive in defining " emergency first aid."

VIII

DAMAGES

" It is axiomatic that the burden of proving damages is on the party claiming them . . . When damages are claimed they are an essential element of the plaintiff's proof and must be proved with reasonable certainty . . . Damages are recoverable only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty." (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, 241 Conn. 678, 689, 697 A.2d 1137 (1997). " In determining the proper measure of damages, we are guided by the purpose of compensatory damages, which is to restore an injured party to the position he or she would have been in if the wrong had not been committed." (Internal quotation marks omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 248, 905 A.2d 1165 (2006).

The court further finds that as a result of David's and Thornhill's breach of the standard of care, the plaintiff suffered a significant injury to his right master forearm. The hospital records clearly document that upon arrival to the hospital the plaintiff was diagnosed as suffering from compartment syndrome, which was caused by the IV infiltration prior to admission. The plaintiff was admitted to St. Vincent's Medical Center in Bridgeport, Connecticut on June 23, 2012, and immediately upon arrival, underwent a right forearm fasciotomy with carpal tunnel release. The preoperative note dated June 23, 2012, indicates that the plaintiff developed " severe pain and exam was consistent with compartment syndrome. He had severe pain and swelling. He had a markedly flexed wrist and fingers, had pain with any attempted motion. He developed numbness in the fingers and also had nonpalpable pulses." Pl. Ex. 4. On June 25, 2012, the plaintiff underwent a second surgery to his right forearm which required " irrigation and debridement, partial wound closure and application of wound vacuum-assisted closure." Pl. Ex. 5. The plaintiff remained hospitalized from June 23, 2012 until his discharge on June 27, 2012. The medical reports during plaintiff's hospitalization indicate that the plaintiff was in severe pain and required morphine for pain relief. Following his discharge from the hospital on June 27, 2012, the plaintiff was seen at St. Vincent's Emergency Department on July 4, 7, and 11 due to pain and/or wound check.

On July 17, 2012, the plaintiff was again hospitalized and underwent a skin graft of his right forearm which was performed by Dr. Alfred Sofer. The skin graft was harvested from the plaintiff's right thigh. The plaintiff remained hospitalized from July 17, 2012 until he was discharged on July 24, 2012. During this hospitalization, the plaintiff was administered morphine intravenously for pain. The plaintiff returned to St. Vincent's on July 26, 2012, for a wound check. The plaintiff reported that he was concerned with infection since there was a foul smelling discharge from the wound. The plaintiff was also prescribed percocet for pain. The plaintiff's wounds were checked and indicated no infection. The plaintiff was discharged home. Dr. Sofer recommended skilled nursing care upon the plaintiff's discharge to perform wound care to the right forearm. The plaintiff was also prescribed occupational therapy from June 29, 2012 to August 27, 2012. The plaintiff underwent in-home occupational therapy until August 6, 2012 at which time the plaintiff began outpatient physical therapy services. After undergoing physical therapy for about a month, on September 7, 2012, the plaintiff underwent a scar release with Z-plasty because the plaintiff was still having problems with extending his forearm. The pre-op and post-op diagnosis was " volar aspect of the elbow scar contracture." Pl. Ex. 34. Dr. Sofer excised the scar going over the volar aspect of the elbow and closed it with a Z-plasty. The operative note indicates that " relatively good release had been achieved." Id. Plaintiff continued with physical therapy until completion of the recommended program in December 2012.

The plaintiff underwent an orthopedic examination by Dr. Phillip Luchini on October 29, 2015, at which time Dr. Luchini opined that the plaintiff had reached maximum medical improvement. Dr. Luchini noted that the plaintiff had pain and weakness with his right upper extremity and difficulty lifting any type of material with his right arm because of weakness. The plaintiff at the time of the examination was also experiencing diminished sensation in the area of the skin graft. The plaintiff was still having difficulty with activities of daily living because of weakness and pain with the use of his right upper extremity.

At the time Dr. Luchini examined the plaintiff in October 2015, the plaintiff " ha[d] limitation of the final 10 degree of extension of the right elbow . . . Measurement of the grip strength showe[d] 60 pounds of grip strength with his right hand as compared to 80 pounds of grip strength with his left hand." Pl. Ex. 31. Dr. Luchini noted that the plaintiff " ha[d] normal sensation in the median and ulnar nerve distribution into the palmar aspect of the right hand and digits with no limitation of motion of the wrist or the digits of the right hand." Dr. Luchini assessed a 15% permanent partial impairment to the right upper extremity.

This court has carefully reviewed the medical reports submitted in support of the plaintiff's claim for damages. The court also reviewed the photographs of the plaintiff's scar and observed the plaintiff's scar during his testimony. The plaintiff suffered a significant injury to his right forearm as a proximate result of the defendant's negligence. Treatment to the plaintiff's right forearm required four surgeries which resulted in significant pain, and extensive physical and occupational therapy. The plaintiff, at a young age, is left with a significant permanent scar, which this court observed, loss of full extension of the elbow with weakness of his grip strength of the right hand and continued limited activity due to the limitations in the use of his right upper extremity, all as a proximate result of the defendants' negligence. The court also notes that the plaintiff continues to have pain in his right upper extremity with normal activities, and is able to perform self-care activities with modification but unassisted.

The plaintiff's past economic damages amount to $72, 290.99. The plaintiff has a 15% permanent partial impairment to the right upper extremity, permanent scarring and a future life expectancy of 48.7 years. Having considered all of the evidence submitted in support of the plaintiff's claim for damages, the court awards the following fair, just and reasonable damages:

Past Economic Damages: $72, 290.99

Past Non-Economic Damages: $350, 000.00

Future Non-Economic Damages: $300, 000.00

Total Damages: $722, 290.99

A

Findings of Liability and Damages

For the foregoing reasons, the court hereby finds the issues of liability and damages in favor of the plaintiff on the complaint with total damages awarded in the amount of $722, 290.99.

IX

CONCLUSION

WHEREFORE, a damage award shall enter in favor of the plaintiff on his complaint in the total amount of $722, 290.99 plus taxable costs against the defendant, American Medical Response, of CT, Inc. It is so ordered.

In Hansen, the trial court considered the dictionary definition of " first aid" and " emergency" as well as interpretations by courts of other jurisdictions of these terms and similar Good Samaritan laws to find that the defendants were engaged in emergency first aid. Hansen v. Mohegan Fire Co, Inc., supra, 30 Conn.L.Rptr. 576-78, . The court took into consideration factors such as the type of treatment and care that would be rendered at the site of an emergency under the given circumstances, the manner in which the defendants were summoned (e.g., 911 call), and the public policy of protecting the public by encouraging or incentivizing medical professionals to render assistance in emergency situations without fear of liability. Id. The court concluded: " By definition, emergency care or treatment is such care or treatment delivered before regular treatment can be obtained?such regular treatment was needed thus necessitating and defining the emergency and transportation was needed to get the regular medical treatment for [the plaintiff]." Id., 577-78, . In Osborn, the court took a different approach: " Instead of resorting to these secondary sources, however, the Court believes that the true meaning of ['first aid' or 'emergency first aid'] must be ascertained by examining the cirricula of those first aid courses which are specifically recognized in the 'Good Samaritan law' as the basic training vehicles for persons who may lawfully seek immunity thereunder. Only if the types of care or treatment or services being rendered to [the plaintiff] at the time of the subject collision were those in which trainees are routinely instructed in such statutorily approved first aid courses can a colorable claim of immunity be asserted under the statute." Osborn v. Elm City Livery, supra, 32 Conn.L.Rptr. 621, . In taking this approach, the court denied the defendants' motion for summary judgment on the ground that there remained a genuine issue of material fact as to whether the defendants were engaged in first aid or emergency first aid in the absence of materials from the training courses against which the court could evaluate the defendants' actions. Id., 621-22, . In combining these two approaches, the defendant in the present case, has not met its burden in demonstrating that its employees were engaged in emergency first aid. First, the approach applied in Hansen provides guidance on the relevant facts and circumstances that the court should examine. Second, the approach applied in Osborn provides guidance regarding against what standard should the relevant facts and circumstances be evaluated to ultimately determine whether the acts at issue constituted emergency first aid as contemplated by § 52-557b(b). In the present case, the following facts are relevant to this inquiry: The defendant's employees were dispatched in response to a 911 call originating from the plaintiff's residence. Upon arrival, the defendant's employees observed that the plaintiff was suffering from a diabetic crisis (dangerously low glucose levels). The plaintiff's condition required immediate medical attention to preserve his life and put him in a stable condition. Thus, the defendant's employees proceeded to intravenously administer 50% dextrose medication. Although these facts are undisputed, and the fact that the defendant's employees were American Heart Association trained and certified is undisputed, the defendant did not introduce into evidence training course material from the American Heart Association, or from other organizations recognized in § 52-557b(b), to establish that its employees were engaged in emergency first aid in accordance with the statute. As a result, this court lacks a standard against which to evaluate the acts at issue and make a determination as to whether the acts by the defendant's employees constituted emergency first aid. Thus, even if this court were to reach the question of whether the defendant's employees were engaged in emergency first aid, the defendant's special defense would fail because it did not meet its burden of showing that its employees' acts were emergency first aid under § 52-557b(b).